The Home Secretary’s statement on DNA retention confidently states “we propose the indefinite retention of DNA profiles of convicted adults”. So far so good as most people, when they think of “convicted adults” think of a burglar, a bank robber or a rapist.
However, this is not what the Home Secretary means. He has in mind something far more lowly in the hierarchy of criminal acts to justify indefinite retention of DNA; it includes the actions of people who do one-off stupid things in their life (e.g. get cautioned for being drunk or reprimanded for some youthful prank).
The Government’s proposals allow the police to obtain a DNA sample (and therefore retain that sample and related personal data) if the offence is a “recordable offence”. It follows that an expansive meaning of a “recordable offence” will result in a DNA database that will be more densely populated with entries.
So what is a “recordable offence” and how does Parliament scrutinise its definition?
The answer lies in Sections 27(4&5) of the Police and Criminal Evidence Act 1984. It tells us that “The Secretary of State may by regulations make provision for recording in national police records convictions for such offences as are specified in the regulations” where “regulations under this section shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament”.
So have you got it? The Home Secretary orders “I want so and so be a recordable offence” and, hey presto, the offence is recordable and DNA samples can be collected. To reject the Home Secretary’s Order, Parliament would have to vote down his proposal – a Parliamentary event so common that it has yet to occur. In short, the Home Secretary has “Alice in Wonderland” powers over this definition: effectively “a recordable offence” is what the Home Secretary wants it to mean.
This is what happened in 2000, when the National Police Records (Recordable Offences) Regulations were enacted. With no Parliamentary debate (see reference below) cautions, reprimands and warnings became “recordable offences”; subsequently individuals arrested in relation to these minor matters (and not charged or convicted) had their DNA sample retained indefinitely.
The Explanatory Memorandum to the Bill (produced by the Home Office) fails to mention that the Home Secretary is in control of the term: it merely says that: “‘Recordable offence’ is defined in sections 118 and 27 of PACE. In practice, all offences which are punishable with imprisonment are recordable offences, as are around 60 other more minor offences which are specified in regulations made under section 27”. It only takes three words in parenthesis (“negative resolution procedures”) after ther word "regulations" to give the complete picture. The omission of these three words is not something I would expect to see in a document purporting to be an “Explanatory Memorandum”.
So any future Home Secretary wanting to extend the DNA database, could equip transport police forces with mobile DNA sampling technology and arrest drivers who commit a certain type of motoring offence (in 2000 there were over 10 million motoring offences so there is a lot to choose from).
Oh – by the way – it doesn’t matter whether the driver is innocent or guilty. That is not relevant as an arrest should do the trick for six year’s retention at least!
Comment: It is also interesting that there are amendments to Section 27(1-3) of Police and Criminal Evidence Act 1984, but not to Sections 27(4-5) which is the subject matter of the blog. I raise this point merely to note that the Home Office did look at Section 27 and must have concluded that sections 27(4-5) did not need changing.
In “Nine principles for assessing whether privacy is protected in a surveillance society” (see www.amberhawk.com/policydoc.asp) I argue that the organisation wanting powers to undertake the surveillance should not regulate the balance that provides protection from misuse of those powers or surveillance. Section 27(4-5) provides another clear example which shows that the risk of letting that balance be determined by the organisation responsible for the surveillance (in this case, the Home Secretary).
References: The only Parliamentary scrutiny of the 2000 Regulations was made by the “Joint Committee on Statutory Instruments Nineteenth Report” (https://www.publications.parliament.uk/pa/jt199900/jtselect/jtstatin/47-xix/6503.htm); it said there was nothing to report.